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United States v. Vogelpohl

United States District Court, N.D. Iowa, Central Division

May 23, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID VOGELPOHL, Defendant.

          ORDER

          C. J. Williams, United States District Judge

         I. INTRODUCTION

         This matter is before the Court on defendant's motion to dismiss the indictment (Doc. 27) and defendant's motion for a bill of particulars (Doc. 26). The government timely resisted both motions. (Docs. 40 & 41). For the following reasons, defendant's motions are denied.

         II. RELEVANT BACKGROUND

         On November 28, 2018, a grand jury returned an Indictment charging defendant with sexual exploitation of a child, in violation of Title 18, United States Code Sections 2251(a) and (e). (Doc. 2). On January 14, 2019, defendant filed the motion to dismiss. Defendant argues that “[t]he indictment does not comply with the minimal requirements under the Fifth and Sixth Amendments to the U.S. Constitution, and is also deficient under the Federal Rules of Criminal Procedure.” (Doc. 27). On the same day, defendant filed a motion seeking a bill of particulars. (Doc. 26). Defendant states that he has filed the motion for a bill of particulars “in case the motion to dismiss is denied, not as a means of curing the indictment.” (Id., at 1 n.1). The Court will therefore address the motion to dismiss first.

         III. MOTION TO DISMISS

         A. Standard of Review

Federal Rule of Criminal Procedure 12(b) authorizes pretrial motions to present “any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). “A motion is capable of pretrial determination ‘if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity' of the motion.” United States v. Turner, 842 F.3d 602, 604-05 (8th Cir. 2016) (quoting United States v. Covington, 395 U.S. 57, 60 (1969)). A motion to dismiss an indictment for lack of specificity must be made before trial. Fed. R. Crim. P. 12(b)(3)(B)(iii). “The sufficiency of the indictment must be determined from the words of the indictment, and the Court is not free to consider evidence not appearing on the face of the indictment.” United States v. Birbragher, 576 F.Supp.2d 1000, 1005 (N.D. Iowa 2008) (quoting United States v. Luros, 243 F.Supp 160, 165 (N.D. Iowa 1965)).

         B. Analysis

         The Indictment states:

Between in or about August 2018 and October 2018, in the Northern District of Iowa and elsewhere, the defendant, DAVID VOGELPOHL, persuaded, induced, and enticed, and attempted to persuade, induce, and entice, a minor under the age of 18 to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct, causing and attempting to cause said visual depictions to be produced using materials that had previously been shipped and transported in and affecting interstate and foreign commerce, knowing and having reason to know that said visual depictions would be transported and transmitted in and affecting interstate and foreign commerce and using a means and facility of interstate and foreign commerce, and said visual depictions were transported and transmitted in and affecting interstate and foreign commerce and using a means and facility of interstate and foreign commerce.
This was in violation of Title 18, United States Code, Sections 2251(a) and 2251(e).

(Doc. 2). In the motion, defendant asserts that the Indictment is insufficiently specific such that it is “fatally defective under the Fifth and Sixth Amendments to the U.S. Constitution and Federal Rule of Criminal Procedure 7(c).” (Doc. 27-1, at 2). Defendant argues that the Indictment “cannot be fairly said to apprise him of the specific facts and circumstances so that he can prepare a defense in this case and defend against double jeopardy in the future.” (Id., at 5). Defendant argues that offenses charged under Section 2251 “must be charged with greater specificity” because the statute is “broadly worded.” (Id.). Defendant also alleges the following specific deficiencies in the Indictment:

The indictment does not identify the exact dates or locations of the alleged crime. The indictment does not mention a minor's name (even by initials), allege an age, does not describe with any additional information what the “sexually explicit conduct” and “producing” (as those terms have multi-part definitions under 18 U.S.C. § 2256) is alleged, and does not describe what means were used to “produce” the visual depictions that had traveled in interstate ...

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